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In every area of practice, WilmerHale brings the insight, dedication to excellence, and commitment to client service needed for our clients to achieve their business objectives. Our five-department structure and team approach to service enable us to provide the highest level of responsiveness and access to lawyers with the most appropriate experience.

Led by litigators who previously served as senior lawyers with the Departments of Justice and Defense, our team has successfully represented clients in difficult, high-stakes FCA litigation brought by relators and the government.

With a team of veteran litigators, prosecutors and former Justice and Defense Department lawyers, WilmerHale brings significant knowledge and experience to defending against False Claims Act litigation brought by relators and the Department of Justice. We approach each case with a deep understanding of the government’s objectives and have obtained favorable resolutions of numerous matters without a formal action being filed. In qui tam litigation, we have obtained early dismissal or resolution of suits brought by relators with precedent-setting legal defenses in the district court and on appeal.

Background

Our team includes former senior government officials who have held positions with direct responsibility for enforcement of the False Claims Act on behalf of the United States, as well as experienced litigators with a record of success in defeating or resolving FCA cases in private practice. Our FCA litigators work closely with lawyers in our Government Contracts Litigation Practice, who have deep experience with the intricacies of federal procurement law and matters of administrative suspension and debarment, as well as members of our Appellate and Supreme Court Litigation Practice on precedent-setting FCA decisions from the federal appellate courts.

We have represented clients in a range of industries in response to investigations by the Department of Justice and obtained favorable resolutions of matters without a formal action being filed. We approach our engagement with the Department of Justice with the benefit of many of our lawyers having been responsible for FCA enforcement matters during their own government service.

WilmerHale also has a record of success in defending against qui tam litigation—an increasing part of the FCA docket. We have obtained dismissal of cases on threshold questions of jurisdiction under the FCA’s public-disclosure and first-to-file bars, for failure to plead fraud with particularity under Rule 9(b), on grounds that the challenged conduct was not precluded by the relevant terms of procurement, and on grounds that the relator had released his right to bring FCA claims against our client. To be sure, certain cases may warrant settlement, and WilmerHale has substantial experience negotiating settlements directly with the government, when settlement discussions with relators prove unproductive.

Experience

Our False Claims Act Group includes:

A former US Deputy Attorney General in the Obama Administration, who supervised all of the Department of Justice's (DOJ) litigating and law enforcement components (including the DOJ's Civil Fraud Unit and the US Attorneys' Offices) and co-led (with the Deputy Secretary of Health and Human Services) the administration's HEAT initiative against healthcare fraud. He also served as Assistant Attorney General for the Civil Division in the Clinton Administration, directly supervising FCA enforcement for the United States, and as Deputy General Counsel for the Department of Defense, where he supervised all litigation, including FCA and government contracts litigation.

A former US Deputy Attorney General in the Clinton Administration, who in that capacity had ultimate oversight over the Department of Justice's Civil Frauds Unit and considered major interventions and settlements. She also served as General Counsel of the Department of Defense, overseeing all litigation, including FCA litigation.

Four former United States Attorneys—for the District of Columbia, the Central District of California, and two for the District of Colorado.

A former Deputy Assistant Attorney General and Principal Deputy Associate Attorney General of the Department of Justice, who in those capacities worked closely with the Civil Frauds Unit on high-profile matters, and who in the latter capacity considered major interventions and settlements proposed by that unit.

A former Deputy US Attorney for the Southern District of New York (SDNY), who participated in the creation of the SDNY's Civil Frauds Unit in 2010 and oversaw its civil fraud actions in the financial services and healthcare sectors, including actions under the FCA.

Numerous lawyers with jury trial experience, including many former Assistant United States Attorneys, as well as lawyers who handle government contracts litigation, including bid protests, disputes concerning performance or payment, and suspension and debarment proceedings.

Highlights

The successful representation of a major communications company in qui tam litigation related to an alleged violation of the False Claims Act by improperly billing the federal government for certain taxes and surcharges, in which the district court dismissed the claim for lack of jurisdiction under the first-to-file bar of the False Claims Act and the DC Circuit affirmed the dismissal on appeal.

The successful representation of a major defense contractor in qui tam litigation related to the company’s development of a laser-targeting device, in which the district court dismissed the case with prejudice, concluding that the relator’s amended complaint failed to state a claim.

The successful representation of a technology and management consulting contractor in the settlement of longstanding litigation with the US Government regarding alleged violations of the False Claims Act, the Anti-Kickback Act and breach of government contracts.

The successful representation of a diagnostic testing company in qui tam litigation related to alleged violations of submitting overstated invoices for lab services to the Commonwealth of Massachusetts, in which the Massachusetts Superior Court dismissed the claim with prejudice.

The successful representation of a major office supply company in False Claims Act litigation relating to country of origin for imported pencils in relation to US Customs and Border Protection forms, in which the district court completely dismissed the case with prejudice.

The successful representation of a pharmaceutical company in qui tam litigation related to the marketing of a prominent medication, in which the Fourth Circuit held that the relator’s claims were barred under a release he filed upon his departure from the company.

The successful representation of a defense contractor in a single-court qui tam action relating to reimbursement for Defense Base Act workers compensation, in which the district court dismissed the claims.

The successful representation of a small business loan company in a qui tam appeal relating to false certifications to the Small Business Administration in connection with shrimp boat loans, in which the Eleventh Circuit upheld the dismissal from the district court.

The successful representation of an optoelectronics and advanced electronic systems company in a qui tam complaint related to the manufacture and sale of high-voltage switches used in military radar systems, in which the federal government declined to intervene after an investigation by the US Attorney’s Office.

As the #MeToo movement gains momentum, companies in nearly every major industry are dealing with allegations of gender discrimination, sexual harassment or even sexual assault—including allegations of widespread misconduct and inappropriate behavior within the upper echelons of the corporate structure.

On February 28, 2018, the Department of Justice's (DOJ) Civil Rights Division announced a new Sexual Harassment in the Workplace Initiative (SHWI) that will focus on combating workplace sexual harassment in the public sector.

On January 25, Associate Attorney General Rachel Brand issued a memorandum to all components of the Department of Justice with civil litigating authority limiting the use of agency guidance documents in affirmative civil enforcement cases.

On January 10, the head of the Justice Department's Civil Frauds Section issued an internal memorandum instructing all Department attorneys handling False Claims Act cases to consider whether, when declining to intervene, the government should go further and move to dismiss meritless cases over relators' objections.

Recognizing the enormous talent and major recent victories of WilmerHale lawyers, The American Lawyer placed the firm's Litigation/Controversy Department in the small group of finalists for the legal publication's 2017 Litigation Department of the Year contest.

Chambers and Partners announced its rankings for the 2017 edition of Chambers USA: America's Leading Lawyers for Business, with WilmerHale listed among the nation's best in 50 practice area categories. Chambers also ranked 86 WilmerHale lawyers as leaders in their respective fields.

In this article published by Bloomberg Law's Federal Contracts Report, Jonathan Cedarbaum, Benjamin Chapin and Thad Eagles discuss the Supreme Court's decision in Universal Health Services v. Escobar ex rel. United States and the different interpretations lower courts have begun to take.

In every area of practice, WilmerHale brings the insight, dedication to excellence, and commitment to client service needed for our clients to achieve their business objectives. Our five-department structure and team approach to service enable us to provide the highest level of responsiveness and access to lawyers with the most appropriate experience.